P. N. Raghava Pillai v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **CRL.A.No. 654 of 2003** **AGAINST THE ORDER/JUDGMENT IN CC 22/2001 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM** ## **APPELLANT/ACCUSED:** **P.N.RAGHAVA PILLAI, FORMERLY ASSISTANT SUB INSPECTOR OF POLICE, KUNNIKODE POLICE STATION, NOW RESIDING AT PALAYATHUMVILA VEEDU, PATHIRICKAL P.O., PATHANAPURAM, KOLLAM DISTRICT.** **BY ADV. SRI. P. VIJAYA BHANU (SR.)** ## **RESPONDENTS:** **STATE REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM, (DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION)** ## **OTHER PRESENT:** **SRI.C.M.KAMMAPPU (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-2-** ## **Crl.A. No. 654 of 2003** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 654 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 06[th] day of September, 2018 ## **J U D G M E N T** The appellant herein was the Assistant Sub Inspector (ASI) of the Kunnikode Police Station in December, 1999. He faced prosecution before the Special Judge (Vigilance) Thiruvananthapuram, in C.C. No. 22 of 2001 under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'PC Act'), on the allegation that at about 3.00 p.m. on 15.12.1999, at the room No. 57 of the Madeena Lodge at Kunnikode, he accepted an amount of Rs.2,000/- from one Prasad as illegal gratification for not arresting him in an abkari case till the final report is submitted in the case, so that he could obtain bail from the court after the final report is submitted. The Deputy Superintendent of Police (Dy.S.P.), Vigilance and Anti ## **Crl.A. No. 654 of 2003** **-3-** Corruption Bureau (VACB), Kollam, registered the crime on the complaint made by the said Prasad on 15.12.1999, and he arranged a trap. The bribe amount of Rs.2,000/- brought by Prasad was received as per a mahazar, and after demonstrating the phenolphthalein test, Prasad and others were instructed to meet the ASI at his room, and make payment on demand. The ASI fell in the trap, and he was arrested by the Dy.S.P. on the spot. The tainted money was seized as per a mahazar by the Dy.S.P. After investigation, the VACB submitted final report in court. 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined six witnesses, and proved Exts.P1 to P14 documents in the trial court. The MO1 to MO5 properties, including the tainted money seized from the possession of the accused, were also identified during trial. 3. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and **-4-** ## **Crl.A. No. 654 of 2003** projected a defence that this is a false case foisted against him for the reason that the police had registered so many cases against the complainant under the Kerala Abkari Act, that he had no reason or occasion to accept bribe for not arresting the accused in the abkari matter because he had no role at all in the said case, and that the trap laid in this case is in fact a vicious trap. In defence, the accused examined two witnesses, and proved Exts.D1 to D15 documents. 4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.25,000/- under Section 7 of the PC Act, and to undergo another term of rigorous imprisonment for three years under Section 13(2) read with Section 13(1) (d) of the PC Act, by judgment dated 09.04.2003. Aggrieved by the judgment of conviction, the accused has come up in appeal. ## **Crl.A. No. 654 of 2003** **-5-** 5. On hearing both sides, and on a perusal of the materials, I find that there is something artificial in the evidence adduced by the prosecution to prove the trap and the detection, and that the whole prosecution case is tainted with genuine doubts. 6. Of the six witnesses examined in the trial court, PW3 is the complainant on whose complaint the crime was registered. PW1 is a public servant who claimed to have witnessed the trap procedure, and the acceptance of illegal gratification by the accused, and PW6 is the Dy.S.P. who detected the offence and arrested the accused. The main evidence is that of these three witnesses. 7. The prosecution case is that when PW3, Prasad, met the accused at the Police Station in connection with a complaint made against him by one Ushakumari, the accused had threatened him that some cases under the Kerala Abkari Act would be registered against him on the basis of information received by him at the Police Station, **-6-** ## **Crl.A. No. 654 of 2003** and the accused asked him to pay bribe at the rate of Rs.1500/- per month for not registering cases against him. The complaint of Ushakumari was settled, and accordingly, he left the police Station. On 10.12.1999, a Police Constable told him about an abkari crime registered against him by the ASI, and he also told that he would be arrested soon by the ASI. Though he made an attempt to meet the ASI on that day, he could not succeed because, the ASI had been away on that day. On 13.12.1999, he went to the room No.57 of the Madeena Lodge, Kunnikode, where the ASI had been staying, and he went there along with one Abdul Aziz, who is an active politician. They accordingly met the ASI, and PW3 told the ASI that he was really innocent, and that he had no abkari business or such involvement. At that time, the ASI told him about a case already registered against him on 09.12.1999, and the ASI further told him that if he paid Rs.5,000/- as bribe, he would delay his arrest, or he would not arrest him at all till the final report is submitted, so that ## **Crl.A. No. 654 of 2003** **-7-** after submitting final report, he could obtain bail from the court. Threatening that he would not get bail in case he is arrested during the crime stage, the ASI demanded Rs.5,000/-. The complainant and Abdul Aziz made a bargain, and in the said bargain, the amount was reduced to Rs.2,000/-. The ASI told Prasad to meet him at his room on 15.12.1999, and make payment of the bribe amount of Rs.2,000/-. As Prasad was not inclined to pay illegal gratification, he approached the Deputy Superintendent of Police, VACB, Kollam, in the morning on 15.12.1999, and made a complaint. Ext.P7 is the complaint made by PW3 before PW6. It was on the basis of this complaint, PW6 registered this crime, and arranged a trap. 8. PW3 has given evidence in terms of the Ext.P1 complaint, and PW6 has given evidence proving the trap laid by him on 15.12.1999. 9. Of course, seizure of the tainted money of Rs.2,000/- from the lodge room of the accused stands proved **-8-** ## **Crl.A. No. 654 of 2003** in this case by the evidence of PW6, supported by that of PW1 and PW3. The witnesses have also given evidence regarding the positive results of the phenolphthalein test conducted there. Thus, it is a fact proved that some tainted money was seized from the possession of the accused. The question is whether this itself is sufficient for a conviction under the PC Act on an allegation of demand and acceptance of illegal gratification. As regards the seizure of tainted money, the factual aspects need not require much discussion. The main question is whether the tainted money was voluntarily and consciously accepted by the accused, knowing that it was illegal gratification. Whatever be the evidence proving seizure of tainted money and the positive phenolphthalein test, the prosecution is bound to prove that the tainted money was accepted by the accused as illegal gratification voluntarily and consciously, knowing the fact that it is illegal gratification. Only when such elements are there, it can be said that acceptance is proved as meant **-9-** ## **Crl.A. No. 654 of 2003** under the law. 10. Now let me see whether there is clear and satisfactory evidence in this case to prove the essentials like demand and acceptance. If the evidence is not clear and satisfactory, or if the court finds anything to suspect the evidence given by the material witnesses on the essentials like demand and acceptance, the accused will have to be acquitted. A public servant can be convicted under the PC Act on the allegation of demand and acceptance of illegal gratification only if there is clear, satisfactory and foolproof evidence proving the demand made by him, and also the acceptance of money by him as illegal gratification. 11. The prosecution case is that the accused demanded an amount of Rs.2,000/-, and also accepted the said amount from PW3 for not arresting him, or for delaying his arrest till final report is submitted in the crime registered against him under the Kerala Abkari Act. Ext.P5 is proved as ## **Crl.A. No. 654 of 2003** **-10-** the FIR registered against PW3 under the Kerala Abkari Act on 09.12.1999. It is pertinent to note that this crime was registered by the Sub Inspector of Police, Kunnikode. It is settled law that as on the date of detection, Assistant Sub Inspectors had no authority to discharge the functions under the Kerala Abkari Act. There is absolutely no material to show that the Sub Inspector, who registered the Ext.P5 crime, and who was competent and authorised to conduct investigation, had, at any time, authorised the accused to conduct investigation, or to arrest the accused. It is a fact that as ASI, the accused had no authority to register crime against PW3 under the Kerala Abkari Act, or to arrest him as part of investigation, or to conduct investigation. It is here, the prosecution story of demand made by the accused becomes doubtful. 12. It has come out from the evidence of PW3 that the Kunnikode Police had registered so many crimes against him under the Kerala Abkari Act, and he had been in ## **Crl.A. No. 654 of 2003** **-11-** judicial custody for sometime. He was brought to court as a witness from the jail while he was undergoing judicial custody. It is quite definite that PW3, as a person facing prosecution in the crimes registered at the Kunnikode Police Station, had his own reasons to make complaints or give evidence against the police officers of the said Police Station. When such a person is the complainant, there must be clear and satisfactory independent evidence proving the case. When such a person like PW3 makes a complaint of demand and acceptance of illegal gratification by the police officer of the said Police Station, the court will have to doubt the genuineness of the complaint, and for coming to a finding in favour of the complainant, the court must require clear and foolproof evidence proving the allegations of demand and acceptance by independent evidence. 13. In this case, there is no other evidence than that of PW3 to prove the story of demand. He has no explanation why, or in what circumstance, or under what ## **Crl.A. No. 654 of 2003** **-12-** authority, the ASI demanded illegal gratification for not arresting him, because, the ASI had no power or authority to arrest him in the Ext.P5 crime, and the Sub Inspector being the right authority to conduct investigation, or to arrest the accused, the ASI would not have demanded money for not arresting the accused. 14. It is the definite case of PW3 in the Ext.P1 complaint and also in the evidence given in court, that he was accompanied by one Abdul Aziz (CW4) on 13.12.1999 to meet the accused at his lodge room. It is his case that he took the said Abdul Aziz to meet the ASI with the object of making some recommendation because, Abdul Aziz is a politician having wide influence. It was at the instance of Abdul Aziz, the accused reduced the claim to Rs.2,000/-. There is absolutely no explanation why the prosecution did not examine Abdul Aziz, though he was cited as an independent prosecution witness. In the absence of such evidence which the prosecution could have adduced as ## **Crl.A. No. 654 of 2003** **-13-** independent evidence, I am not inclined to accept the evidence of the complainant as foolproof and untainted evidence, in view of the fact that PW3 had his own reasons to make complaints against the police officers, as a person involved in the abkari crimes registered at the very same Police Station. 15. The evidence of PW1, PW3, and PW6 is that at about 2.00 p.m. on 15.12.1999, they all left the office of PW6, and as instructed by PW6, the complainant (PW3) and PW1 went to the lodge room of the accused. PW3 stated in evidence that Abdul Aziz had been waiting for him at the premises of the lodge, and he also joined him to meet the accused at the lodge. According to PW3, Abdul Aziz was also there with him when he met the accused at his room, and when he made payment of Rs.2,000/- to him. Thus, the said Abdul Aziz is a witness to the acceptance also. There is no explanation why the prosecution did not examine the said Abdul Aziz to prove the essentials like demand and **-14-** ## **Crl.A. No. 654 of 2003** acceptance, when even according to the prosecution, the said Abdul Aziz is the only person who witnessed everything. 16. It is really doubtful whether the trap in this case is a genuine one or a vicious one because, according to PW3, the said Abdul Aziz had been waiting for him at the premises of the lodge. That he had been waiting at the premises was not revealed to PW6 by PW3. It is really doubtful why this particular fact was not told to PW6 by the complainant, or the complainant made the said Abdul Aziz wait at the premises of the lodge to accompany him to meet the accused, without informing PW6 about this fact. The suppression of the involvement of Abdul Aziz as pre-planned by him and the complainant, makes the trap suspicious. Had it been a genuine trap, everything would have been revealed to the Dy.S.P. by the complainant, and the complainant would have made PW3 wait there to accompany him to the room of the accused with the knowledge and on the instructions of the Dy.S.P.. The fact that these things ## **Crl.A. No. 654 of 2003** **-15-** were suppressed by the complainant, will give an indication that the trap was viciously arranged by the complainant and Abdul Aziz, and after pre-planning things to trap the ASI, Prasad made a complaint tactfully before the Dy.S.P.. I find reason to believe in the above circumstances that the trap in this case is not in fact a genuine one. 17. As regards the presence of PW1, at the spot of detection, or in front of the lodge room of the accused, things are really doubtful. PW1 claims to have accompanied the complainant to the lodge room to witness the acceptance of illegal gratification, as instructed by PW6, and his evidence is that he remained stealthily outside in such a way as to witness things from outside, and he had seen the complainant handing over the tainted money to the accused. Admittedly, the place of detection is a lodge room at Kunnikode where the accused had been staying. To witness the acceptance, PW1 would have remained outside the room, or at the varanda. It is really strange and **-16-** ## **Crl.A. No. 654 of 2003** unbelievable that the police officer demanded money, or accepted illegal gratification in the presence of somebody waiting outside. PW1 does not clearly explain how exactly he could witness the alleged acceptance. Anyway, his evidence that he had witnessed the acceptance becomes doubtful in view of the evidence given by PW3 on cross examination, that when he made payment of amount at the lodge room of the accused in the presence of Abdul Aziz, there was nobody outside. He does not know where exactly PW1 had been waiting. Anyway, he is definite that when he made payment in the presence of Abdul Aziz at the room, he had not seen anybody outside the room. This means that the evidence of PW1 that he had witnessed the acceptance, is quite unacceptable and rather unbelievable. 18. As regards the signal conveyed to the police, the case of PW1 is that when PW3 made the pre-planned signal, he relayed it to PW6. It is not known how PW6, waiting outside lodge room, could see PW1 conveying or ## **Crl.A. No. 654 of 2003** **-17-** relaying the signal by standing at the varanda of the lodge. His case is that the complainant was instructed to make the pre-arranged signal which PW1 would convey or relay to the Dy.S.P.. But PW6 has no case that he had made such an arrangement that the signal shall be first made by the complainant, and it shall then be conveyed or relayed to him by PW1. PW3 has also no case that the signal was shown by him to PW1. He does not say to whom he made the signal, or what was the pre-arranged plan regarding signal. His evidence is only that he made a signal, and within a few minutes, the police party came there. He does not know how the signal was seen by the police party, or who conveyed the signal to the police party. These are all suspicious circumstances. 19. The Honourable Supreme Court has consistently settled the legal position as regards the necessary ingredients of Sections 7 and 13(1)(d) of the PC Act, in so many decisions. In **Banarasi Dass** v. **State of** ## **Crl.A. No. 654 of 2003** **-18-** **Haryana** (AIR 2010 Supreme Court 1589), the Honourable Supreme Court held that proof of demand is essential for a conviction under the PC Act on an allegation of acceptance of illegal gratification, and that mere proof of recovery of bribe money from the accused will not be sufficient for a conviction. Much before that the Honouarable Supreme Court had held in **Meena W/o. Balwant Hemke** v. **State of Maharashtra** (2000 Supreme Court Cases 878) that mere recovery of tainted currency note, and positive result of phenolphthalein test will not be enough to establish the guilt of the accused, and that the essentials like demand and acceptance must be proved beyond reasonable doubt. In **State of Punjab** v. **Madan Mohan Lal Verma** ((2013) 14 Supreme Court Cases 153), the Honourable Supreme Court stressed the necessity of proving demand and acceptance for a conviction under Sections 7 and 13(1)(d) of the PC Act, and held that mere recovery of tainted money will not be enough for such a conviction. In **Purushotham M.R.** v. ## **Crl.A. No. 654 of 2003** **-19-** **State of Karnataka** (2014 KHC 4614) = (2015 Crl.L.J. 72), the Honourable Supreme Court held that mere possession or recovery of tainted currency note without proof of demand will not bring home the offence under Section 13(1)(d) of the PC Act. A larger Bench of the Honourable Supreme Court held in **Jayaraj B.** v. **State of Andhra Pradesh** (2014 KHC 4199) = (2014 Crl.L.J. 2433) that a conviction under Section 7 of the PC Act cannot be sustained when there is no clear evidence proving demand of illegal gratification and acceptance of such illegal gratification, and that mere recovery of tainted currency note cannot constitute the required offence under Section 7 of the PC Act. 20. Thus, it is the settled legal position that for a conviction under Sections 7 and 13(1)(d) of the PC Act, the prosecution is bound to prove the two essentials beyond reasonable doubt, and where ever possible, there must be independent evidence proving such essentials. The first essential is demand of illegal gratification, and the second **-20-** ## **Crl.A. No. 654 of 2003** essential is acceptance of illegal gratification, voluntarily and consciously with the knowledge that it is illegal gratification. 21. In this case, the only evidence to prove these essentials is that of the complainant. This is not a case where independent evidence is not possible to prove the essentials. It is the clear and definite case of the complainant that one Abdul Aziz had accompanied him on 13.12.1999 and also on 15.12.1999. On 13.12.1999, the complainant and Abdul Aziz met the accused for some favourable measures in the abkari crime against the complainant, and it was on that day, according to them, the accused made demand, and they made a bargain as a result of which the claim was reduced to Rs.2,000/-. Thus, Abdul Aziz is the person who made bargain on behalf of the complainant, and got the claim reduced to Rs.2,000/-. On 15.12.1999 also, Abdul Aziz had accompanied the complainant, though it was not really known to the Dy.S.P., who arranged the trap. Without informing PW6, who had ## **Crl.A. No. 654 of 2003** **-21-** arranged the trap, the complainant secretly made some arrangements, and as pre-planned, Abdul Aziz joined the complainant on the way without the knowledge of the police, and went along with him to the lodge room of the accused. PW3 stated that when he reached there, the accused repeated the demand, and accordingly, the money was paid by him in the presence of Abdul Aziz to the accused. Thus, it is quite clear that the said Abdul Aziz is the only independent witness to prove the essentials. He ought to have been examined as a witness to give independent evidence, but for reasons not known, the prosecution did not opt to examine him. There is absolutely no explanation for this. This is a case where such independent evidence is absolutely necessary because, the complainant is a person involved in so many abkari crimes, and he had his own reasons to make complaints against police officers. 22. DW1 is the Sub Inspector examined on the defence side. He stated that he was the Sub Inspector of the **-22-** ## **Crl.A. No. 654 of 2003** Kunnikode Police Station on 13.12.1999. He has no case that the ASI was authorised to do anything in connection with the Ext.P5 crime. The crime was registered by another Sub Inspector. It could have been brought out through DW1 whether the ASI was in any manner authorised to do anything as part of investigation in the Ext.P5 crime. In such a situation, the case of the complainant that the ASI demanded bribe for not arresting him as part of investigation, is really unacceptable. 23. As discussed above, I find that the whole prosecution case is tainted with genuine doubts regarding the alleged demand, the circumstance in which the alleged demand was made, the trap wherein one witness from outside had intervened without the knowledge of police, and accompanied the complainant to the room of the accused to make payment of illegal gratification etc.. When things are doubtful, and when the prosecution has failed to adduce the available best evidence or the available independent ## **Crl.A. No. 654 of 2003** **-23-** evidence, the accused cannot be found guilty. The evidence given by the prosecution is not foolproof, it is artificial on various aspects, and the evidence given by the material witnesses is tainted with doubts. When such doubtful circumstances are there, or when there are reasons to believe that the trap in this case is a vicious one, the benefit of those doubts must go to the accused. In the result, the appeal is allowed. The appellant is found not guilty of the offences under Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act, and he is acquitted of the offences in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against the appellant in C.C. No. 22 of 2001 of the Court below will stand set aside, and he will stand released from the prosecution. The bail bond, if any, executed by him will stand discharged. Sd/- **P.UBAID JUDGE** ds 03.07.2018